The state’s top law office says a Department of Game and Fish program that gave private property owners leeway over who could access public waters on their land is “unconstitutional and unenforceable.”
A report dated Sept. 17 by Assistant Attorney General John Grubesic said the rule can’t block the public from using rivers and streams that cross private property as long as people don’t trespass on dry private property to reach the waterways.
After a vote of 6-1 to make the report from the Attorney General’s Office public, the New Mexico Game Commission on Thursday asked the head of the department to develop a plan to amend or change the Non-Navigable Water Rule.
Chairwoman Joanna Prukop said the issue is complicated, but the opinion from the Attorney General’s Office was clear.
“We were told by the state attorney that the rule was invalid,” Prukop said in a Friday interview. “Our offices are exposed to liability for enforcing the rule. We directed the department yesterday to enforce criminal trespass as they would on any other water in the state until we have resolved this rule.”
She said two things were determined at the meeting. The commission found it has no authority to regulate water law in the state and that parties will most likely have to go to court to settle issues over private property rights and use of public access to waterways.
Prukop said this doesn’t change the Department of Game and Fish imperative to enforce criminal trespass rules.
A department representative said the commission did not give Director Michael Sloane a timeline to produce the plan.
The seven-member commission, which issues hunting and fishing regulations, is appointed by the governor, with no more than four members from the same political party.
A previous commission, appointed by then-Gov. Susana Martinez, developed a program in 2017 that allowed landowners to certify rivers and streams that cut through their property as “non-navigable” and required anyone who wanted to use the water to receive written permission or be subject to criminal trespass.
The current commission requested input from the Attorney General’s Office on the rule and issued a 90-day moratorium on the program in July.
Grubesic cited Article 14, Section 2 of the New Mexico Constitution, which says “the unappropriated water of every natural stream” within New Mexico’s borders belongs to public.
Grubesic wrote that the constitution does not allow the term “non-navigable” to limit public access to waters, even if it’s used in some states to determine the public character of water. He also cited a 1945 case that established that landowners with property surrounding waters, or the beds underlying the water, “did not give the landowner any special interest in the water in the lake or streams.”
The struggles between property owners and people hunting, fishing or recreating on public waters spans decades, one small link in a chain of complex issues throughout the West dealing with water rights, fishing rights, stewardship of the ecosystem and public versus private land use.
Executive Director Jesse Deubel of the New Mexico Wildlife Federation, which advocates for hunters and anglers, supported the move.
“New Mexico anglers and sportsmen who rely on our public lands need a fair shake from the game department,” Deubel said in a news release.
Lawyer Marco Gonzales, who represents landowners in Terrero who opposed repealing the program, told the commission to let the issue be resolved by the Legislature and the courts.
In July, when the moratorium was first proposed, ranch owner Dan Perry told The New Mexican he supported the state rule. He owns a ranch just south of the Colorado border where visitors can fly-fish privately for rainbow and brown trout for $500 to $600 a night. He said trespassers had damaged the area and killed many fish.
“It’s really hard on the environment,” Perry said. “And it’s our private property, too.”